Any employer who "intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee because the employee has: (1) Commenced or caused to be commenced...a proceeding under on of the Federal statutes listed in § 24.1(a)..." is deemed to have violated the federal law and regulations in Part 24. 29 C.F.R. §24.2(b).

   Neither 29 C.F.R. Part 24 (whistle blower proceedings) nor 29 C.F.R. Part 18 (procedures for administrative law judge hearings) address dismissal for failure to state a claim; therefore, the standards set out in the Federal Rules of Civil Procedure are applicable. Glenn v. Lockheed, 1998 ERA 35 and 50 ( ALJ July 15, 1999). Under Federal Rule of Civil Procedure 12(b)(6), dismissal may be appropriate when the facts in the case fail to state a claim. Id. In considering whether a dismissal is appropriate, the facts alleged in the complaint are taken as true, and all reasonable inferences are made in favor of the non-moving party. If the factual allegations, after having been accepted as true and construed most favorably on behalf of the non-moving party, present a cognizable claim if proved by a preponderance of the evidence, dismissal is not proper. Jones v. City of Lakeland, Tennessee, 175 F.3d 410 (6th Cir. (Tenn.) 1999). However, failure to allege a prima facie case is grounds for immediate dismissal. See Lovermi v. Bell South Mobility, Inc., 962 F. Supp. 136, 139 (S.D. Fla. 1997); Briggs v. Sterner, 529 F. Supp. 1155, 1164 (S.D. Iowa 1981).

   Complainant has the initial burden of proof in an environmental whistle blower proceeding to make a prima facie case which shows that: (1) complainant engaged in a protected activity; (2) complainant was subjected to adverse action; (3) respondent was aware of the protected activity when it took the adverse action; and, (4) the evidence is sufficient to raise a reasonable inference that the protected activity was the likely reason for the adverse action. Glenn, 1998 ERA at 7. If Complainant has succeeded in establishing the foregoing, Respondent must produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Frady v. Tennessee Valley Authority, 92-ERA-19 (Sec'y Oct. 23, 1995) The complainant bears the ultimate burden of persuasion that Respondent's reasons are not the true reasons for the adverse action, but a pretext for discrimination. Id. At all times, Complainant bears the burden of establishing by a preponderance of the evidence that the adverse action was in retaliation for the protected activity. Id.

   Complainant alleges that he engaged in a protected activity by his reporting of safety concerns to the United States Nuclear Regulatory Commission. Complainant has established the first element required to establish a prima facie case of retaliation.

   The second requirement for a prima facie case of retaliation requires adverse action on the part of the Respondent. When determining whether a complainant has established an actionable adverse action in a failure to hire case, the framework of a prima facie case outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) applies. Webb v. Carolina Power & Light Co., 93 ERA 42, 12 (ALJ July 24, 1996) (aff'd, ARB August 26, 1997). In order to establish a prima facie case of discriminatory refusal to hire, the complainant must show: (1) that he applied and was qualified for a job for which the employer was seeking applicants; (2) that, despite his qualifications, he was rejected; and (3) that, after his rejection, the position remained open and that employer continued to seek applicants from persons of complainant's qualifications. Id.

   In neither his complaint, nor in any of his responses, does Complainant allege that he mailed his resume in response to any job opening. In fact, in his "Response to Respondent's Motions to Dismiss," Complainant alleges only that his resume has been with Respondents for years and he did not get a job based on his whistle blowing activities. This does not meet the first element, that he applied and was qualified for a job for which employer was seeking applicants. Although Complainant alleges the second element, that he was not (re)hired by Respondent, this element is dependent upon the first; an application for a job for which the employer was seeking applicants. Thus, Complainant has not established the second element. Similarly, Complainant does not allege the third element, that the position remained open, because Complainant has not established that a position was open in the first place. As such, Complainant has not alleged a prima facie case of adverse action on the part of Respondent and has failed to meet the second requirement.

   In satisfaction of the third requirement, Complainant must show that Respondent was aware of the protected activity when it took the adverse action. Since Complainant has not met the requirements to establish adverse action, he has failed to allege the third requirement for a prima facie case of retaliation.

   The fourth requirement to allege a prima facie case of retaliation by Complainant is that there is sufficient evidence to raise a reasonable inference that the protected activity was the likely reason for the adverse action. Because Complainant has not alleged a prima facie case of adverse action, he has not met this requirement.

   After a careful review of the record, Complainant has failed to set forth a prima facie case of proscribed behavior, or provide a full statement of the acts and omissions, with pertinent dates, which are believed to constitute a violation. 29 C.F.R. § 24.5(a)(2). In addition, Complainant's Complaint, as pled, fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

   In his Response to Show Cause Order, Complainant argues that dismissal is improper because he has not obtained discovery in this case. As Complainant has failed to establish even a prima facie case, his discovery requests would become nothing more than fishing expeditions. In the absence of a prima facie showing, a court has the discretion to dismiss a claim. See generally McLaughlin v. McPhail, 707 F.2d 800, 807 (4th Cir. 1983). Therefore, I find that Complainant's argument that dismissal is improper in the absence of discovery is without merit.

   Accordingly,

   It is ORDERED that the Complaint of Syed M A. Hasan be, and is hereby, dismissed.

       ROBERT J. LESNICK
      Administrative Law Judge

RJL/lab

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).